FEDERAL COURT OF AUSTRALIA

G & K O’Connor Pty Ltd v Australasian Meat Industry Employees Union

[2001] FCA 990

G & K O’CONNOR PTY LTD v AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION & ANOR

V75 of 2001 

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION & ORS v G & K O’CONNOR PTY LTD

V833 of 2000

WILCOX, MADGWICK and KENNY JJ

MELBOURNE

8 MAY 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Leave to appeal be revoked.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

APPLICATION FOR LEAVE TO APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  Leave to appeal be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     The first matter is an appeal against orders made by Marshall J on 12 December 2000.  Those were interlocutory orders but leave to appeal was granted on 18 December 2000 by a Full Court comprising North, Goldberg and Finkelstein JJ.  However, on 12 February 2001 Marshall J substituted different interlocutory orders for those made on 12 December.  Under those circumstances we raised with counsel for the appellant, Mr Brian Mueller, the question whether the points sought to be raised in the appeal had become moot.  After some discussion Mr Mueller agreed this was the case and that his client would not be prejudiced by revocation of the leave to appeal.  That being so, we revoked leave.

2                     The second matter was an application by G & K O’Connor Pty Ltd for leave to appeal against the orders made by Marshall J on 12 February 2001 (see Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2001] FCA 72).  Mr Mueller contended his Honour’s judgment was attended with sufficient doubt to warrant it being reconsidered by a Full Court.  His primary argument was that Marshall J erred in failing to hold that the appellant’s withdrawal of its offer to enter into Australian Workplace Agreements (“AWAs”) with the personal applicants deprived the court of any jurisdictional basis for granting or maintaining interlocutory relief.  Mr Mueller developed this argument by reference to the history of the dispute, letters sent by his client to the personal applicants on or about 7 December 2000 and affidavit evidence of Steven Silberer, finance manager of his client company.

3                     Having regard to the fact that there has yet to be a final hearing of proceeding V833 of 2000 it is inappropriate for us to make any extensive comment on the facts.  It is sufficient to say we are not persuaded that the reasoning expressed by Marshall J on this point, in paras 10 to 15 of his Reasons for Judgment of 12 February 2001, is attended with sufficient doubt to warrant review by a Full Court.  It is to be remembered that Marshall J was not expressing any final conclusion about G & K O’Connor’s position in relation to AWAs.  He was concerned merely with the question of whether the applicants had demonstrated a serious question to be tried in relation to contravention of s 170WG(1) of the Workplace Relations Act 1996.

4                     Although Mr Mueller initially made complaint about the substitution on 12 February 2001 of orders specifying minimum money sums for the more general form of order made on 12 December 2000, he later withdrew this complaint and indicated that, if the Court was satisfied there was a proper jurisdictional basis for interlocutory relief, he wished not to press any complaint about its form.  In this situation we need say nothing about the form of the order.

5                     Even if we are wrong about the question of whether Marshall J’s reasons are attended with sufficient doubt to justify leave to appeal, there are alternative or additional reasons for concluding that the application for leave to appeal ought to be refused.

6                     First, it is difficult to see that the orders occasion any prejudice to the appellant.  Although the orders oblige the appellant to pay particular money sums to various classes of employees, those sums are no more than the appellant pays comparable employees who have entered into AWAs.  Senior counsel for the union and the employees, Mr Rothman SC, repeated today, perhaps in more specific terms than previously, his clients’ willingness to abide by all terms of the AWAs relating to day-to-day operations at the appellant’s premises.  If there is any problem about implementing that promise, it can be raised before Marshall J.

7                     Second, if leave were granted, the Court would have to give to the Union and the employees an opportunity to consider whether they wished to file a notice of contention repeating arguments on which they were unsuccessful before Marshall J, or which his Honour did not need to determine.  This would prevent the appeal being disposed of this week and would extend the distraction from trial preparation that the appellate proceedings seem to have already caused.  This is a matter of importance: it seems that a final hearing of the proceeding could be arranged at a relatively early date if both parties were prepared to make the effort to be ready.

8                     Third, we are aware of a related proceeding heard by Conti J, V723 of 2000.  Judgment has been reserved in that matter.  His Honour has indicated an awareness of the urgency of a decision and has given an assurance he would give judgment as soon as possible.  Although his Honour’s conclusion, or a conclusion of a Full Court on any appeal from Conti J, may not resolve all the issues in matter V833 of 2000 it is clear it will resolve at least one fundamental issue in that proceeding, the applicability of the 1992 Agreement.

9                     This litigation has gone on for a long time.  It must have been enormously burdensome for all concerned.  In our opinion, it is preferable for the parties to concentrate their energies on final hearings, and any appeals therefrom, rather than disputation about interlocutory orders.  The application for leave to appeal will be dismissed.

Associate:

Dated:              18 October 2001